BAY CONCRETE CONST. CO., INC. v. Davis , 43 Va. App. 528 ( 2004 )

FRANK, J.,

concurring.

I concur with the opinion to the extent that the commission correctly determined that Code § 65.2-712 does not apply to this case. The only remaining issue is whether the commission erred in not allowing the carrier to pursue a civil remedy.

No one contests that an overpayment was made or that the carrier is entitled to a credit. In its brief, the carrier premised certification under Code § 65.2-710 upon a finding of a violation of Code § 65.2-712. Under the carrier’s theory before the commission, if it does not prevail under Code § 65.2-712, then there is no civil relief under Code § 65.2-710. The issue of whether Code § 65.2-710 applies independently to this case was not before the commission and is not properly before this Court. I therefore disagree that this Court has the authority to consider the independent application of Code § 65.2-710 and would not address the issue of whether or not the commission properly declined to certify the award to the circuit court.